In case it were needed, the Daily Telegraph today reported on a case where “laddish” behaviour in the workplace led to a substantial payout for the female Claimant, Miss Angelina Ashby, which included £15,000 for injury to feelings and £9,158 for loss of earnings.  Read the article for the details, but this case should serve as a reminder that this sort of behaviour just isn’t acceptable in the workplace.

Male workers made unpleasant jibes about her weight and appearance and viewed pornography online.  When she issued a grievance she was criticised for being too sensitive and “unmanageable”.  She won her claim for sex discrimination and constructive dismissal against her employers. There are no great surprises there.

However, two aspects of this story stood out for me from this report.  The first was that the employer worked on Ministry of Defence marine contracts, which must mean that at some point they had been through a tendering process.  Many (but perhaps not all) tendering processes for government and QUANGOs often require that the employer adheres to employment law best practice.  Was that the case here, as clearly, in this instance, what was going on was as far from employment best practice as you could imagine?

The second factor is that Miss Ashby lost her equal pay claim.  She was reportedly paid £13,500 per annum in her role as a sales executive, while three male sales executives were paid £24,000 and this was justified on the basis that they were “proactive”.

I wonder what this means?  That they simply brought in more business than Miss Ashby? I assume, although we are not told (and this is only a report in a newspaper and not a legal journal) that she brought her equal pay claim on the basis of “like work”, which means work which is of the same or broadly similar nature in which there are no differences of practical importance in relation to terms and conditions of employment”.  It will be interesting to know how the difference in this case was justified if it was other than simply based on commission earned.

No related posts.

Men Behaving Badly originally appeared on Jobsworth by Michael Scutt on 12/12/2011.

How do you achieve pay equality in the workplace between the genders?  David Cameron said in Parliament the other day that having more women in the boardroom would have a beneficial effect  – on what is not clear but I’m sure he’s right.  He was questioned in relation to excessive pay awards and bonuses to senior executives and I can’t see that women should be any less greedy than men, taken as a whole.  But perhaps his point was wider than that.

Perhaps in relation to family friendly policies and pay equality it would be a good thing to have more women in senior positions.  Apparently 47% of FTSE 250 companies do not have a woman on their Boards and it will take 98 years for women’s pay to catch up with men’s on current trends.

Women at senior levels still lag well behind on pay – 20% according to the above article in The Guardian.  At junior executive levels there is parity but why doesn’t that extend further up?  The Equal Pay legislation, contained originally in the Equal Pay Act 1970 and now the Equality Act 2010 have made steps to address the imbalance, but it has not done nearly enough.  One reason is the equal pay claims have always been expensive and difficult to pursue successfully.

There are two main types of equal pay claim.  The first is based on the concept of “Like Work”.  This means that if a person (probably a woman but could be a man) can show that she is paid less than a man for doing the same job then that can be relatively easy to succeed with.  However, the problems arise with the second type of claim, that for “work of equal value”.  That is much harder because the woman needs to prove that the job she was doing as the comparator man, although not the same job, was of equivalent value.  Unless the employer operates a job evaluation scheme that rates each role enabling comparisons between different jobs, it can be very difficult to prove the jobs are of equal value and thus that there is inequality.

The usual way it is done is for an outside expert to be appointed to come into the workplace and evaluate the roles in question.  That can take a long time and is very expensive.  ACAS offer such a service at reduced cost but there tends to be a long waiting list for it.

Employers also have a defence – if they can show that there is “a material factor” justifying the differential on grounds other than gender. This can be a very difficult obstacle for a Claimant to overcome.  If an employer seeks to pay a man more than a woman on the basis of their gender it will need to be able to justify the differential on the basis that it is a proportionate means of achieving a legitimate aim or face a claim for sex discrimination.

When the Equality Act was first drafted, it was proposed that “gagging clauses” in employment contracts should be outlawed, thus enabling employees to discuss with each other how much they got paid without being in breach of contract and thus liable to disciplinary proceedings. That was subsequently watered down so that there is now only limited protection if a person makes a “relevant pay disclosure”.

This means that if a person asks a colleague how much they get paid in order to assess whether they are being paid less because of a “protected characteristic” (ie sex, race, disability, age, religious/ philo-sophical beliefs or sexual orientation) they are protected, but if they ask out of mere curiosity they won’t be. The protection exists across more than just gender inequality.

In other words, if a gay woman asks a straight woman how much she is paid the gay woman is protected and can’t be disciplined in respect of this (and neither can the straight woman for disclosing).  However, if a straight woman asks a straight woman the same question just out of curiosity then neither party is protected if they breach their employment contracts in talking about it.

The Equality Act gives the government power from 2013 to require all companies with more than 250 employees to publish pay details, but whether that provision will ever be brought into force seems very unlikely to me in the current climate.

All in all then, the legal position for gender inequality is very difficult, and claims can be lengthy and prohibitively expensive and that may explain why we still have pay inequality between the genders.

But does it? I was asked to go on the Jeni Barnett show on BBC Radio London 94.9FM on Thursday to (briefly) dis

cuss all these issues.  Is it just down to the failings of the law or is the problem more fundamental?  Could it be the education system that is at fault for not doing enough to promote vocational or scientific courses to girls? Or is it just a reflection of the immutable fact of life that most women will want to have children and trying to balance a career and kids is hard at any level.

Maybe that is the answer.  Trying to “have it all” just doesn’t work for the majority of women.  Workplaces are not (generally) family friendly.  Where are the workplace crèches that would enable women to work more easily?  Employees with children or adults to care for can request to work flexibly, but it is only a right to request, not a right to workflexibly. The request can be turned down for “good business reasons”, which is not a very challenging hurdle.

In many places the factory and the office are still macho environments.  Here in the City it is still acceptable in many financial services institutions to take clients out to lap-dancing clubs. That is hardly the mark of a gender neutral workplace.

In one of the many government reviews of our allegedly “terrible” employment laws (cf: Adrian Beecroft) the existing flexible working rights may be watered down and the plan to allow all employees (i.e. to extend beyond parents with minor children and those who care for elderly relatives)to request flexible working may not now be introduced.  In the plethora of recent announcements, leaks reviews and proposals I think I even read that maternity and paternity rights might be rolled back – all in the name of reducing red tape and supposedly appeasing the business vote.  That will do even less to bolster the Prime Minister’s standing amongst women voters.

David Cameron may well think that more women in the Boardroom might lead to a more female friendly environment, but if his government implements policies that restrict the rights of employees (probably disproportionately on women) it will never happen.  Instead of bashing employment laws Dave, let’s have some joined up thinking!

Related posts:

1. The Most Radical Employment Law Reforms for Decades? Or a Spectacular Own-Goal?
2. The Equality Act: Here at Last – Worth the Wait?
3. Why Employers Shouldn’t Ask Pre-Employment Health Questions: Equality Act 2010 #2

Why Employment Law Reforms Will Harm Gender Equality in the Workplace originally appeared on Jobsworth by Michael Scutt on 05/11/2011.

You’ve probably heard some barrack room lawyer saying “they can’t touch me, I’ve put all the assets in my wife’s name” or “they can do what they want, I’m a limited company.”  In this case “they” is usually a spouse or a creditor.  In the case of Bungay and Paul v Chandel & Ors (UKEAT/0331/10) “they” was actually a Claimant in proceedings before an ET.

Bungay and Paul were directors in the company. They were found by the ET to have conducted a campaign of discriminatory action against Mr Chandel which were intended to get him removed from his post. Even after Mr Chandel’s dismissal, the two directors continued to make unfounded and malicious complaints to the police.

So far, so unremarkable  (if rather unpleasant) you might say. Directors are subject to fiduciary duties too.  For instance two of those duties include “acting for proper purposes” and  ”acting in good faith in the best interests of the company”, both of which may arguably be infringed by this type of conduct.  The problem, of course, is that enforcing a fiduciary duty is not usually an option open to an employee.

However, and the really interesting aspect of this case is that by the time the ET got round to considering what remedy to award Mr Chandel, the company had gone into liquidation. This didn’t prevent the ET from holding that Messrs Bungay and Paul should be held “jointly and severally liable” for their actions and awarded compensation to be paid by them both, and also made an award for aggravated damages to reflect the severity of their conduct. Thus rather neatly sidestepping the small problem of the company itself (and being the legal entity with whom the employee had contracted) no longer being in existence.

Inevitably, the case went to the EAT. The issue regarding the directors liability came down to whether they could be held to be “agents” of the company and thus liable despite the fact they were directors of a limited company.  Under the now defunct Employment Equality (Religion or Belief) Regulations 2003 reg. 22(2) provided that a Principal will have liability conferred on it for the discriminatory acts of its agents. Reg 23(2)deemed that a person who is held liable for the actions of the Principal will be held to be its agent.  In this case the Regs deemed the directors liable.  Mr Justice Silber then considered the case law and relied on Lana v Positive Action Training Housing  (London) [2001] IRLR 501 which states that the test of authority is whether when doing a discriminatory act the discriminator was exercising authority conferred by the Principal, and not whether the Principal had authorised the agents to discriminate. In other words if the directors did the act whilst running the business thety will be caught.

The EAT looked at the company’s Articles of Association which gave the directors power to run the business and, of course, they had been running the business when they removed Mr Chandel.

That put liability firmly back onto the two directors (and not the other “innocent” directors) and instead of making an award against all, the court held that an award should only be made against those directors (Gilbank v Miles (2006) IRLR 538 ) who had “consciously fostered and encouraged a discriminatory culture” .

Aggravated damages, which are rare at the best of times, were ordered because the campaign of discrimination had continued after termination.

Company directors need to be careful following this decision as it does provide another route for a Claimant to pursue in employment disputes. Acting badly and then hoping to hide behind a limited company might not be a panacea. Although in Bungay the central point of law turned on the drafting of the Employment Equality Regs (now repealed by the Equality Act),the EqA contains similar provisions at ss.109 & 110.

This case is probably going to be of importance only in disputes involving discrimination. “Ordinary” unfair dismissal cases will not be affected as there is no corresponding “deeming” provision.  But, with the government due to increase the qualifying period from 1 year to 2 years for unfair dismissal by April 2012 the number of discrimination claims may well increase as disgruntled employees seek creative ways around the time limit.

Thanks to Henderson Chambers for the summary of this case.

Related posts:

1. Beware Festive Cheer (or what not to do at the Office Christmas Party)
2. What are Lawyers really like?

Barrack Room Lawyers Beware originally appeared on Jobsworth by Michael Scutt on 12/10/2011.

The Independent reported yesterday that an “influential” group of City figures was urging the government to restrict compensation payments in discrimination cases to £50,000.  Currently such awards are unlimited in size, unlike in unfair dismissal cases where the compensatory award is (currently) capped at £68,400.  I have never understood the rationale behind one being restricted and not the other: why should unfair dismissal awards be capped and not those in discrimination cases? Or, conversely why shouldn’t unfair dismissal awards be uncapped?

The answer to both questions is politics and Europe.  Employment law is a football to be kicked around by the government of the day and what gets enacted as legislation depends on the colour of the government in power at the time and by what is allowable under European law and regulation.  At the moment employment law is taking a leathering with the government consulting on reforms to both law and procedure. The consensus amongst many commentators (and businesses) seems to be that there is not much more to this than words.  The “Employers Charter” launched in January was underwhelming and the announcement of the extension of the government’s review of employment announced last month to consider restricting discrimination awards, and whether the TUPE regulations do more than required by European legislation looks like little more than window dressing. The ECJ could get very busy if the government does try to seriously prune these rights.

There is a widespread perception that employment rights have swung too far in favour of employees and prevent employers from running their businesses as they would like.  I think more of this is made than is strictly correct, but it is true that employers face an ever increasing amount of burdensome employee rights.   I’ve written before how I think the government’s proposal to reduce the number of unfair dismissal claims by increasing the qualifying period of continuous employment experience from 12 to 24 months will backfire.  At present there is no qualifying period of employment needed to bring a discrimination claim.  Therefore if the length of time for unfair dismissal is increased, it will merely make employees look harder to find a discrimination element into their grievance so that they can present a claim to the Employment Tribunal.

The government’s hands are said to tied by European regulation from tinkering with Equality legislation.  Therefore, perhaps the way forward, even if it might seem counter-intuitive, is to uncap unfair dismissal awards and reduce the qualifying period, so that there is no need for employees to try and bring spurious discrimination claims.  That would leave discrimination cases for those cases that genuinely revolve around discrimination. A more robust approach on costs by ETs as well as issue fees for presenting an ET1 should reduce the number of unmeritorious claims.

Will it happen?  No, that would mean taking what Sir Humphrey Appleby of “Yes Minister” fame would have called a “courageous” political decision, and that’s not going to happen.

Related posts:

1. Enforcing Unfair Dismissal Awards Part II
2. Race Discrimination and Redundancy
3. Age Discrimination – a damp squib?

Should the Government Cap Discrimination Awards? originally appeared on Jobsworth by Michael Scutt on 06/06/2011.

There was  a lot of coverage last week in the media on the outcome of the case of Hall & Preddy v Bull & Bull involving the clash of religious beliefs and gay rights.  It wasn’t an employment case but a dispute over discrimination (against a homosexual couple) in service provision, in this case Mr & Mrs Bull, a devout Christian couple who ran a B&B and refused to allow Mr Hall and Mr Preddy to stay in their B&B because it offended their religious beliefs.

It’s a very readable Judgment, particularly the opening paragraphs. For an excellent analysis of the law see Mrs Markleham’s blog here and for a thoughtful counter-argument from Steven Mather see here.

The Judge held it to be an instance of “direct discrimination”, as opposed to “indirect discrimination”, because only married (and thus heterosexual) couples were allowed to take a double room, which disadvantaged Messrs Hall and Preddy because (being gay) they were in a civil partnership.  The relevant law is contained in the Equality Act (Sexual Orientation) Regulations 2007. The crucial point is that those Regulations specifically provide that there no distinction is to be made between married couples and those in a civil partnership (s.3(4)),

In the workplace both religious belief and sexual orientation are protected by legislation, as they are in service provision cases.  What happens when both collide, as here?  The Judge held that the gay couple were entitled to compensation and awarded them £1,800 each.  Cue much wailing and gnashing of teeth from the Christian corner over how their rights had been infringed. The Judge did give leave to appeal and it will be interesting to see if Mr and Mrs Bull do pursue what is a very difficult issue of competing rights in a free society.

I think there are two points to make about this;

1. This case doesn’t mean that Christians have to accept homosexual people into their homes if they don’t want to. In this case they were running a business – a B&B – a very different matter. They weren’t obliged to let Messrs Hall & Preddy into their private quarters.

1. Discrimination is always wrong.  For instance, if the guests had been refused entry because they were black, or Jewish, or disabled (remember why Glenn Hoddle resigned as England manager?) what would have been the reaction then?

In Thursday’s The Independent a letter writer posed the question “what would have happened had a couple called Mary (heavily pregnant) & Joseph turned up at the B&B and announced they needed a bed for the night and then announced that Joseph wasn’t the biological father”?  How would Mr and Mrs Bull’s religious convictions dealt with that one?

Related posts:

1. Redundancy – know your rights!
2. Climate change can be a philosophical belief
3. What is a reasonable belief?

A Clash of Cultures: Gay Rights vs Religious Belief originally appeared on Jobsworth by Michael Scutt on 24/01/2011.

The EA has been in force for roughly one month and it is already experiencing some turbulence.  Not from Duncan Bannatyne’s rantings in the Daily Mail but from the effect of some sloppy drafting.  The problem concerns the drafting of s.147(5) of the Act, which deals with compromise agreements.

The offending section says;

“ none of the following is an independent adviser in relation to a qualifying compromise contract:

(a) a person who is a party to the contract or the complaint; and

(d) a person who is acting for a person within paragraph (a) in

relation to the contract or the complaint . . .”

The problem is that this clause precludes the solicitor who acted for the Complainant prior to the drafting of the compromise agreement advising the employee on the terms of the agreement and thus, crucially, preventing him/her from signing the adviser’s certificate that is required to make it a legally binding agreement.  Even a solicitor who advises solely on the terms of the agreement is unable to validly sign the adviser’s certificate, according to advice the Law Society has received from Counsel.  The Law Society is seeking an urgent meeting with the Government Equalities Office (who don’t see a problem existing) to try and resolve the issue.

So what?  Is this just a nice lawyer’s argument or is it a real problem? It’s the latter: this has very significant implications for the settlement of disputes under the EA, particularly for employers.  If disputes can’t be settled by the parties entering into a compromise agreement then it leaves only two other options: one is to fight the case all the way at an Employment Tribunal so that a finding is made or, secondly, ET proceedings are commenced and settled via ACAS under its COT3 procedure.  The first option is catastrophic in terms of the costs and time that would be wasted if the parties were minded to settle and the second is better, but not greatly.

Without a legally binding compromise agreement, employers dare not settle claims because there would be nothing to stop an employee from taking the money and then still suing the employer.  Possibly a warranty could be included in the agreement to say that the employee would not do that, but that is not a formal waiver and the warranty will be fairly worthless if the employee has already spent the money.

For employees the issue is more one of frustration: disputes won’t settle and thus the aggro and inconvenience of the dispute will continue.

Let’s hope the Government sees sense and the draftsman of s.147 is hanged drawn and quartered (ok, a bit harsh, perhaps commute that to a stiff telling off?)

STOP PRESS – 3rd November 2010

For a very useful follow-up on the above points and why actually all may not be lost, read this article by Martin Searle Solicitors.  It contains a summary of the advice given by Robin Searle QC of Cloisters Chambers and also Daniel Barnett (another barrister, from 1 Temple Gardens) on why, with caution, compromise agreements may still be used.  Undoubtedly though the whole situation is uncertain and needs to be clarified as soon as possible.

Related posts:

1. The Equality Act 2010: Genuine Occupational Requirements and Other Stories #3
2. What Should Employers do About Third Party Harassment: Equality Act 2010 #4
3. The Equality Act 2010: 24 Days and Counting #1

The Equality Act 2010: Law Society Seeks Urgent Consultation originally appeared on Jobsworth by Michael Scutt on 01/11/2010.

Today marks the introduction of the long-awaited Equality Act (EA10), a piece of legislation proposed by Labour and brought in by the current government.  Click here for the BBC’s story on it. Coincidentally perhaps, today also sees the general release of the film “Made in Dagenham” about the 1968 strike by women at the Ford car factory over sex discrimination and is credited with having led to the Equal Pay Act 1970.

I’ve written several pieces about EA10 on this blog just recently and I’ll add more from time to time.  Despite all the fanfare though, there are significant questions being asked about the effect the Act will have on the cause of equality in this country. Yes, employers will have to stop using pre-employment health questionnaires and will need to beware of third party harassment claims but, in the main, EA10 just consolidates the previous law and does some tinkering at the edges.  More provisions will come in over the next couple of years, such as dual discrimination claims, but for the time being things look pretty familiar.

Undoubtedly great strides have been made over the last forty years to make racism, sexism, homophobia etc unacceptable in society and quite right too. However, the Equal Pay Act 1970, which is abolished by EA10, was a failure: it is very complicated and expensive to pursue claims and 40 years on, there is still very significant gender based pay inequality in the workplace.  According to a report in The Guardian last month equal pay for women will not arrive until 2067.  The Chartered Management Institute conducted a survey which showed that women’s salaries increased by 2.8% on average over the last 12 months, compared with 2.3% for men, but male managers (on average) are paid £10,031 more than women managers. The situation is worse in the IT and pharmaceutical sectors than other sectors of the economy and the UK sees more gender pay inequality than elsewhere in the European Union.

The last Labour government planned to make employers disclose gender pay levels and to ban “pay secrecy” clauses in contracts of employment.  That hasn’t happened and the final position is more complicated. Pay gagging clauses are now unenforceable and employers need to consider whether to remove them from the contracts they hand out to new employees.  EA10 protects employees who discuss their pay with colleagues for the purpose of “making or seeking to make a relevant pay disclosure”.  In other words, if the employee is trying to ascertain whether they are being underpaid because of discrimination on the grounds of any one of the protected characteristics (and not just gender) under the Act, it would be unlawful for the employer to discipline them or to victimise them because of making or seeking that information.  The problem for employers is to determine when a “relevant pay disclosure” has been made – get it wrong and a claim for victimisation might arise.

Pay inequality is not going to be removed until full disclosure is required.  The current government is said to be considering its position on this issue. However, to force employers to disclose gender pay levels is going to be politically risky and might lead to discord between the parties in the Coalition Government.

The Government Equalities Office has published a useful guide to EA10 – click here to access it.

Related posts:

1. The Equality Act 2010: 24 Days and Counting #1
2. The new Equality Bill
3. What Should Employers do About Third Party Harassment: Equality Act 2010 #4

The Equality Act: Here at Last – Worth the Wait? originally appeared on Jobsworth by Michael Scutt on 01/10/2010.

Next month sees the new Equality Act come into force, as I mentioned last week in #1. EA10 will do away with existing discrimination law, including the Disability Discrimination Acts 1995 and 2005. There will be several changes to disability discrimination. What should employers be doing in response to avoid workplace discrimination claims?

The new law changes the existing definition of disability that a Claimant will have to satisfy to gain protection under the Act.  The new definition defines a person as being disabled if they have a physical or mental impairment which has a substantial or long-term adverse effect on their ability to carry out normal day to day activities (as now) but they won’t have to show that any of the specified list of capacities (e.g memory, speech, dexterity, mobility and so on) is affected.  This should make it easier for those with mental illness to successfully pursue claims.

A person who does satisfy the definition will have four potential claims to bring against their employer;

1. Direct Discrimination – this type of claim exists under current law. This will mean that a person who is treated less favourably because they are disabled (which is a protected characteristic) can bring a claim.  EA10 introduces an extension to direct discrimination by allowing claims for disability discrimination (and harassment) to be brought on the basis that they are perceived to be disabled or because they associate with someone who is disabled (see #1)
2. Indirect Discrimination – this is new under EA10 and means that an employee will be able to argue that a practice, criteria or provision (“PCP”) disadvantages persons sharing the same disability as the Claimant.  There is no need to show that the employer knew or ought to have known that the Claimant was disabled.
3. Discrimination arising from a Disability – this will be available where a person is treated unfavourably because of a consequence of his disability and the employer knew or ought to have known that the person was disabled.
4. Failure to make reasonable adjustments – as under current law, the employer must make reasonable adjustments to enable a disabled person to work and this includes a positive duty on the employer to provide auxiliary aids to a disabled person, as well as providing information in an accessible format to assist them at work.

Claims under (2) and (3) can be met by the defence of Justification (see #3) i.e. that the PCP is a proportionate means of achieving a legitimate aim.

What steps should employers be taking now?  Claims may well arise under (2) and (3), especially where employers operate bonus or incentive schemes where employees are rewarded for attendance, or not having time off sick (which is likely to impact upon disabled people who may need to have time off for medical appointments/treatment etc).  If attendance is a factor in awarding discretionary bonuses then that may be discriminatory.  Similarly any “marking down” in appraisals because of attendance could also be discriminatory.  Employers need to carefully review all their policies and procedures and should seek legal advice where they are concerned there might be a negative impact.

If you need more information on any of these issues please contact me at michaelscutt@dalelangley.co.uk

Boring Legal Disclaimer

The above summary is only my understanding of the law and does not constitute legal advice to you.  You should not take any action in reliance upon it.  Don’t blame me if it goes wrong.

Related posts:

1. Why Employers Shouldn’t Ask Pre-Employment Health Questions: Equality Act 2010 #2
2. The Equality Act 2010: Genuine Occupational Requirements and Other Stories #3
3. The Equality Act 2010: 24 Days and Counting #1

Disability Discrimination Claims to Get Easier? Equality Act 2010 #5 originally appeared on Jobsworth by Michael Scutt on 14/09/2010.

What steps do you take to prevent visitors hassling your employees at work?

It might seem an odd question, but once EA10 comes into force the number of potential third party harassment claims will be increased.  I’m talking here about visitors to business premises, be they clients/customers or suppliers, indulging in “unwanted conduct” towards an employee; not harassment from fellow employees.  Under the current law, only the Sex Discrimination Act 1975 provides any protection to an employee who is the recipient of unwanted conduct from a third party, allowing him or her (usually her) to complain that the employer did not take steps to prevent that conduct.  EA10 extends this type of claim to all the protected characteristics (see post #1).

This might be going too far

An employer may be held liable to its employee if the employee has been the victim of unwanted conduct on at least three occasions (i.e. two previous occasions and then the third becomes actionable) from a third party and the employer knew about the two previous occasions and did nothing to prevent it from occurring. So, for example, if a deliveryman is rude or abusive to the office receptionist a claim may arise if the employer becomes aware of what is going on and fails to prevent it.  What steps can be taken?  In that example the deliveryman (and probably his employers) should be made aware of his conduct and he be refused access to the building.  However, difficulties may arise if his unwanted conduct is to try to “chat her up”.  Where is the dividing line there?

These new rights under EA10 are not the end of the story.  Employees could still bring a claim under the Protection from Harassment Act 1997 (“PHA”) if there have been two or more incidents of behaviour that cause distress to the victim. There is no need to prove that the harassment was in respect of a protected characteristic, which you would need under EA10.  A PHA claim would be taken to the County Court and there is a six year time frame (“limitation period”) for so doing, unlike the three month claim for a discrimination action in the Employment Tribunal.  It is possible for the applicant to get an injunction under the PHA against the harasser as well (unlike under discrimination law).

The risk to employers is that they can be held vicariously liable under the PHA for third party harassment and required to pay compensation. In other words, the employee will sue the employer for not taking steps to prevent the harassment.

Claims against employers under the PHA have been in the spotlight since the case of Majrowski v Guy’s Hospital NHS Trust in 2005.  Establishing liability can be difficult for a Claimant, especially as subsequent case law has held that the incidents giving rise to the claim have to be of near criminal standard.   There is also a costs risk to the Claimant because the action is taken in the County Court and the loser usually has to pay the winner’s costs.  In my view, unless it is unlikely that the harassment can be linked to a protected characteristic, or the Claimant delays for too long in bringing the claim, most third party harassment  claims will be brought under EA10 where the costs risk is minimised.

Employers need to review their procedures on this issue and consider implementing a policy for use where it does occur.  This might include banning offenders from the premises or not requiring the employee to deal with that visitor.

What steps would you take if it happened in your company?

If you require further assistance please contact me at michaelscutt@dalelangley.co.uk

Next Up: Disability Discrimination

Related posts:

1. The Equality Act 2010: 24 Days and Counting #1
2. Why Employers Shouldn’t Ask Pre-Employment Health Questions: Equality Act 2010 #2
3. Employers Watch Out: It’s Office Party Time!

What Should Employers do About Third Party Harassment: Equality Act 2010 #4 originally appeared on Jobsworth by Michael Scutt on 10/09/2010.

How do employers deal with EA10?

New obligations are imposed and there is plenty of scope for employers to fall foul of them.  Is it just “open season” for employees?  Probably not, although there will probably be a rise in claims for disability discrimination (the definition has been simplified) and in equal pay claims, because of the restrictions on the use of pay secrecy clauses (more on this in due course). Despite the plethora of Statutes and Regulations over the last few years, it is still quite difficult for an employee to succeed with a discrimination claim except in all but the most clear cut cases.  The usual problem for an employee is to prove that the “less favourable treatment” is because of a particular protected characteristic.

Aside from arguing “we didn’t do it”, there are defences open to employers, but not all are available in all cases: it depends on the nature of the claim being brought.  Under the existing law, there was a “genuine occupational requirements” defence in specific cases. This has been removed in EA10.

In cases of Indirect Discrimination (see my previous article here) it can be possible for an employer to escape liability if they can justify their actions as being a proportionate means of achieving a legitimate aim. The ACAS Guide for employers describes it thus:

Justified?

Although the government has now announced that the default retirement age of 65 will be abolished next year,  it remains the case that an employer can still require an employee to retire at 65 without it being age discrimination.  However, the employee can request to continue working and the employer is under a duty to consider whether to grant the request or not.  If the employer refuses the request it has to be able to justify that decision or face a claim for age discrimination.

Apart from consolidating the law, EA10 also seeks to enhance equality in the economy. Therefore it will not be unlawful for an employer or a public body to take “positive” discriminatory behaviour in favour of a protected characteristic if requiring someone to be female, gay, disabled etc is a proportionate means of achieving a legitimate aim.

This is a complex area and expert legal advice should be taken by employers if concerned.  All employers should, in any event, be reviewing their policies and procedures to ensure compliance with the new Act. What steps are you taking?

I can be contacted at michaelscutt@dalelangley.co.uk

Next Up: Third Party Harassment Claims

Boring Legal Disclaimer

The above summary is only my understanding of the law and does not constitute legal advice to you.  You should not take any action in reliance upon it.  Don’t blame me if it goes wrong.

Related posts:

1. Disability Discrimination Claims to Get Easier? Equality Act 2010 #5
2. What Should Employers do About Third Party Harassment: Equality Act 2010 #4
3. The Equality Act 2010: 24 Days and Counting #1

The Equality Act 2010: Genuine Occupational Requirements and Other Stories #3 originally appeared on Jobsworth by Michael Scutt on 08/09/2010.